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Liability for Improperly Managed Referrals

Referring a patient to another physician generally relieves the original physician of responsibility for the patient's care and reduces his or her liability. However, if the referral is not made correctly, the liability of the referring physician may increase. The referral must be acceptable to all three parties involved: the referring physician, the receiving physician, and the patient. (If the patient requires emergency care or is in labor, the referring physician must comply with the federal laws discussed in Chapter 32.)

Patients have the right to refuse referral without relieving their attending physicians of responsibility. To refer patients against their wishes and then withdraw from the patient's care constitutes abandonment. Historically, abandonment did not result in substantial tort losses because patients could usually find substitute care. This is no longer true in many parts of the United States. Abandoned patients, particularly pregnant women, may not be able to find care until they can qualify for emergency care under the federal laws. Referrals must be made so that the patient is assured of the availability of ongoing care.

When a patient refuses to be referred to another physician, the attending physician should find out why and attempt to correct any problem. If the patient is opposed to the specific physician recommended, another physician should be sought. If the patient's insurance will not pay for the care, the attending physician should help the patient deal with the insurance carrier. If the patient does not want to change physicians, the attending physician should carefully explain to the patient why this is impossible. (Perhaps the physician does not have the skills or resources needed to continue the case.) The patient should understand that after making appropriate care available, the attending physician will withdraw from the case.

A physician may refuse a referral for a variety of reasons but not if he or she has a preexisting duty to care for the patient. (See Chapter 9.) The neurosurgeon whose hospital staff privileges are dependent on his accepting referrals from the emergency room, for example, has a duty to treat an accident victim referred from the emergency room. In practice, this duty does not help the emergency room physician or the patient if the neurosurgeon refuses to come in. The emergency room physician must care for the patient until appropriate specialty care becomes available.

The attending physician should ensure that the receiving physician will accept the patient before making the referral. This may be on a patient-by-patient basis or through an ongoing agreement. If the receiving physician refuses to accept the patient, the referring physician must make other arrangements. If the physician refusing the referral has an obligation to accept the referral and still refuses, the referring physician should report the refusal to the proper agency: a hospital medical staff committee, a contractual provider of medical services such as an HMO, or the state board of medical examiners. Physicians should keep in mind that they may become liable for the lack of adequate staff coverage or the misbehavior of other physicians if they acquiesce in the misbehavior.

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